Truth-seeking processes in Africa: Lessons from the South African Truth and Reconciliation Commission and the Ethiopian Red Terror trials

3.1 Transitional context and institutional setup for truth-telling

Despite South Africa’s long history of violence and discrimination, the country’s transitional justice focused on contemporary history dating from 1960 - the crimes committed during apartheid.43 All forms of violations and crimes were committed, including racial oppression; torture; massacres; forced disappearances; and economic

deprivation.44 To deal with this past, South Africa established the Truth and Reconciliation Commission (TRC) with the underlying philosophy of national unity and reconciliation contained in the epilogue to the Constitution.45 The transition itself resulted from political negotiations that commenced in the late 1980s, as opposed to the radical revolution in Ethiopia. In negotiated transitions, the different parties may hold different conceptions of justice and present themselves as struggling for justice.46 In such cases, ‘the question of how to see that justice is done is itself usually a matter of political negotiation and compromise’.47 In explaining the different choices available to society, Sarkin observed:48

The type of justice that is pursued is dependent on the type of transition of which there are three broad types: overthrow, reform and compromise. Being overthrown is the fate of a regime that has refused to reform: opposition forces become stronger and finally topple the old order. When reform is undertaken, the old government plays a critical role in the shift to democracy. In countries where change is the result of compromise, the existing regime and opposing forces are equally matched and cannot make the transition to democracy without each other. Such was the case in South Africa.

Hence, the TRC resulted from South Africa’s negotiations. The TRC was formally established by a democratically-elected parliament through the Promotion of National Unity and Reconciliation Act.

The objective of the TRC was to promote

national unity and reconciliation in a spirit of understanding which transcends the conflicts and divisions of the past by establishing as complete a picture as possible of the causes, nature and extent of the gross violations of human rights ... including the antecedents, circumstances, factors and context of such violations, as well as the perspectives of the victims and the motives and perspectives of the persons responsible for the commission of the violations, by conducting investigations and holding hearings. 49

The TRC had a further mandate of

establishing and making known the fate or whereabouts of victims and by restoring the human and civil dignity of such victims by granting them an opportunity to relate their own accounts of the violations of which they are the victims, and by recommending reparation measures in respect of them.50

The TRC also had the power and duty of ‘compiling a report providing as comprehensive an account as possible of the activities and findings of the Commission ... and which contains recommendations of measures to prevent the future violations of human rights’. To facilitate truth-telling, the TRC was empowered to grant amnesty to people involved in political violence upon fully disclosing their participation.51 This power drew some criticism. Unconditional amnesty has lost legitimacy in the contemporary international legal order and also lost favour at national level.52 It is considered a refutation of justice, and only a few scholars defend this in a restricted and qualified way and when the public supports it.53 According to the TRC Act, the granting of amnesty exonerates a suspect from criminal and civil liability in respect of an act, omission or offence subjected to amnesty.54 It also exonerates the state and other organisations that may have been vicariously liable. This was not acceptable to many victims and relatives, and its constitutionality was seriously challenged in light of access to justice (section 22 of the Constitution).55 Nevertheless, the Constitutional Court in its decision of 1996 upheld the constitutionality of the amnesty-granting power of the TRC, by invoking that the Preamble to the Constitution (national unity and reconciliation) limits the right of access to courts.56 The underlying reasoning is that truth was essential for building national unity and reconciliation and that without amnesty, offenders would not disclose the truth about past violence. The Constitutional Court also noted the negotiated nature of the transition, and that the Constitution itself would not have been possible without such amnesty. The Court recognised the dissatisfaction of victims at seeing offenders go free. However, in its judgment, the Court noted:57

The result, at all levels, is a difficult, sensitive, perhaps even agonising, balancing act between the need for justice to victims of past abuse and the need for reconciliation and rapid transition to a new future; between encouragement to wrongdoers to help in the discovery of the truth and the need for reparations for the victims of that truth; between a correction in the old and the creation of the new.

The victims’ interests were thought to be addressed through the compensatory benefit of discovering the truth and state reparation processes. The argument in South Africa is that amnesty was conditional and was decided on an individual basis; it did not allow perpetrators simply to go free, unlike the blanket amnesty in countries such as Chile. Neither did South Africa opt for prosecution, which basically embraces the Western conception of retributive justice; instead, it adopted the ‘third way’ of dealing with its past.58

At this juncture, it is interesting to highlight a few points about the Gacaca system in Rwanda for its unique approach of dealing with the past and establishing the truth. Rwanda demonstrates the co-existence of different levels of transitional processes involving the International Criminal Tribunal for Rwanda (ICTR), the formal courts of Rwanda, and the Gacaca courts. The latter had their roots in Rwandan tradition and were later reinvented as distinct quasi-judicial institutions of addressing past violence. The Gacaca system was launched as a response to the logistical and other challenges of bringing many thousands of suspects to justice. It has been noted:59

Based on traditional practices of communal reconciliation, the Gacaca hearings were officially instituted as an elaborate and sustained exercise of transitional justice in local settings with grass-root participation ... the Gacaca hearings took place in local Rwandan communities.

Therefore, in Rwanda, one finds a mixture of transitional justice processes operating at different levels and emphasising different elements of transitional justice. The Gacaca represents a community truth-telling and reconciliation process.60

The TRC has been described as

the most ambitious and organised attempt to deal with crimes of a past regime through a concept of truth ... A political strategy to acknowledge past suffering whilst promoting a future based on the concerns of social justice, the rule of law and reconciliation.61

Nevertheless, certain limitations of this model should be noted. One problem, as discussed above, was the amnesty itself which was viewed as the refutation of natural justice. It may, however, be said that South Africa adopted a different conception and process of justice. The truth-finding process had further limitations. These included the mandate of the TRC (restricted to certain crimes only); the need for objectivity and the absence or inadequacy of cross-examination; the lack of corroboration of amnesty statements; and the inability to reach apartheid beneficiaries.62

Many commentators believe that ‘the TRC had contributed to the healing process in South Africa. It gave people a voice to be heard and it was a vehicle to peaceful co-existence in South Africa.’63 Despite its limitations, the TRC has offered a unique opportunity of dealing with a legacy of violence by placing truth-telling at the centre of social healing and reconciliation.

As in South Africa, the people of Ethiopia throughout their history had witnessed extreme atrocities under different forms of government. However, Ethiopian’s transitional justice process dealt only with the recent past. Spearheaded by the SPO, the process was introduced by the transitional government (TGE), following the defeat of the repressive military regime. The TGE was not an elected government and its legitimacy may be questioned. However, it may derive its legitimacy from being a representative of various political groups; a case of truncated democracy pending elections. Nevertheless, critics argue that some political groups deliberately were excluded from the transitional government, rendering it flawed.64

The SPO had a mandate to investigate and institute criminal proceedings against Derg officials and their affiliates.65 Retribution was the dominant motive and formed the transitional justice process. This resulted from the nature of the transition: the revolutionary overthrow of a repressive military regime as opposed to a negotiated transition as in South Africa. However, the issue remains not whether prosecution was possible, but whether it was desirable.

Nevertheless, the importance of truth and truth-recording was recognised in the legal framework. The law states:66

It is in the interest of a just historical obligation to record for posterity the brutal offences ... perpetrated against the people of Ethiopia and to educate the people and make them aware of these offenses in order to prevent the recurrence of such a system of government.

This conforms to Tietel’s term ‘historical justice’, namely, that the truth must be known and recorded. Interestingly, the proclamation describes the wrongdoings that are to be recorded and made known. This recording is a matter of historical obligation rather than preference, suggesting the existence of a rights holder. The truth so discovered and recorded was thought to advance public education and public awareness and, in so doing, deterring the recurrence of further violations. Hence, the Ethiopian framework recognises the importance of truth and history to individual victims, family and relatives as well as the public - both current and future generations. As will be discussed, truth-telling through the adversarial judicial process is problematic. In addition, the process excluded reconciliation and the role truth plays in it. For some, reconciliation should have offered the ultimate solution for Ethiopian society, which had experienced deep divisions and polarisation, a lack of trust and animosity. 67

3.2 Inclusiveness of the truth-seeking process

Societies in transition should provide an inclusive general framework for the operation of the transitional process. The truth or history, though essential to coming to terms with the past and building a better future, remains a contested issue during transition. It is argued that ‘there is frequently little consensus even among family members on the key stories and their interpretation, and there may not be a shared account about the nature and time of key events’.68 The argument goes on that just as in families, so in large groups, there can be little consensus on major events, their meanings and any actions they might imply.69 How can a truth-telling process overcome this problem - of contested truth? In transitional societies, there may not be a consensus about the history of past violence - the nature and magnitude of violence, its duration, the perpetrators, the victims and the reasons behind past violence. Individual experiences and emotions coupled with myth provide various presentations of what happened. It has been said that ‘in all cases of transition from a repressive regime to a non-authoritarian system, the interpretation of history has been an important and disputed subject’.70 This speaks to both the necessity and the difficulty of providing a general and impartial narration within which the transitional justice process should operate. Consequently, it can be said that non-discriminatory transitional justice processes allow ‘all parties to be treated justly irrespective of the side they come from’.71 Therefore, society should formulate a comprehensive framework to enable the various narrations and interpretations about the past.

The South African truth-telling framework was all-inclusive, that is, no individual or group was exempt. The mandate of the TRC was broad enough to investigate violations committed by both the previous government and the different freedom-fighting groups, such as the African National Congress (ANC), the Pan-Africanist Congress (PAC) and the Afrikaner Weerstandsbeweging or Afrikaner Resistance Movement (AWB).72 This made it possible to expose more truth. The Commission noted that ‘[a] gross violation is a gross violation, whoever commits it and for whatever reason. There is thus legal equivalence between all perpetrators. Their political affiliation is irrelevant.’ 73 In fact, this even-handedness is reflected in the findings of the TRC.74

However, the Ethiopian framework provided a selected narration of historical violence and, therefore, an incomprehensive truth-telling and recording framework. It provides that ‘the people of Ethiopia have been deprived of their human and political rights and subjected to gross oppression under the yoke of fascistic rules of the Dergue-WPE regime for the last seventeen years’.75 It also states that

heinous and horrendous criminal acts which occupy a special chapter in the history of the peoples of Ethiopia have been perpetrated against the people of Ethiopia by officials, members and auxiliaries of the security and armed forces of the Dergue-WPE- regime.76

These provisions embody the official and legislative declaration of the past. Is it then logical to claim that one is pursuing truth while the truth has already been declared? And if this is the truth and therefore known, what else is there to be discovered and recorded? This predetermination, perhaps, was possible because of the nature of the transition itself and thus may be viewed as a victor’s justice and truth.

The contestation about this narration is not so much about the designation of the Derg as a violator or the nature of its crimes. The fact that the Derg was a killing machine is undeniable.77 It relates to the role of other political groups in past violence. Historical accounts indicate that various opposition groups committed human rights violations in the course of their violent opposition to the Derg and to each other. In the course of these conflicts, opposition political groups also committed violations irrespective of whether these violations are comparable to those of the Derg or not.78 The Ethiopian People’s Revolutionary Party (EPRP) and Me’ison (the All-Ethiopian Socialist Movement) are just two examples. The EPRP-Derg urban clash in the name of white terror/red terror claimed the lives of thousands of Ethiopians. Zewde has observed that ‘the labels “white terror” and “red terror” ... [were] intended to condemn one form of terror and justify another’.79 For example, it was alleged that in Addis Ababa alone the EPRP killed 1 319 people believed to be Derg members or supporters.80 What is the truth about this? The EPRP and Me’ison were not the only opposition political groups involved in past abuses. The most radical account unequivocally concludes that ‘[all] armed groups which opposed and eventually overthrow the Dergue, killed [as] deliberately, indiscriminately and ruthlessly as the Dergue did’.81 If so, why were these political groups excluded from the transitional justice process?82 What is the implication of this exclusion for victims, relatives and society? De Waal noted that ‘[t]here is no impartial history of Ethiopia; every presentation of historical facts is laden with modern-day political implications’.83 However, this is exactly what the transitional justice process should have addressed and clarified by adopting some process of truth-telling.

The incomprehensiveness of the framework, first, questions the impartiality and legitimacy of the process. Second, it limits the exposure and recording of the truth, thus limiting society’s prospect of coming to terms with its past and transforming to a better future.

3.3 Procedural flexibility

A transitional justice process may be analysed based on the flexibility it allows for uncovering the truth. In fulfilling its mandate, the TRC opened many offices and devised various mechanisms and procedures to reach as many citizens as possible.84 The techniques employed included, but were not limited to, taking statements from victims and establishing the forensics for dealing with factual truths.85 An interesting aspect of the TRC’s operation was its transparency. It held public hearings that gained extensive media coverage, enabling it to reach as many people as possible.86 It was noted that ‘establishing a public awareness and record of the TRC’s work was important to reach the goal of societal acknowledgment of the country’s past, which created space for healing and restorative truth’.87

In contrast, uncovering and recording the truth in Ethiopia was part of a criminal justice process. We may concur with Tibor that the exposure of the truth is an essential element of criminal justice.88 However, the suitability of courts to establish the truth is debatable, especially in a transitional context of dealing with atrocities committed in a relatively distant period. Truth as a by-product of a criminal justice process, contained in court judgments and sentences, can be contested because of the inherent procedural restrictions. While the TRC was more flexible in its approaches, the Ethiopian judicial approach involved too formal and less flexible processes that made it difficult to enable the widest search for truth.89 Moreover, an adversarial justice process requires the parties to establish their case or truth while the judge acts as a neutral arbiter. The limited role of judges and the adversarial nature of the process restrict the disclosure of the truth through a court.90 In addition, the credibility and legitimacy of a transitional justice process depend on the independence and impartiality of the institution undertaking such task. This is true of the credibility and legitimacy of truth-telling through Ethiopian courts.

3.4 Victim participation

Victims should be at the centre of all efforts of a society in dealing with the past.91 Hence, one may question the extent to which victims are identified and recognised as central subjects of truth-telling processes. The TRC process offered victims the opportunity to narrate their sufferings and experiences. This was believed to ‘facilitate a cathartic experience for victims who were finally able to tell their stories, establishing a personal and narrative truth’.92 The victims’ perception of what happened to them forms part of the public report

and also needs to be respected.93 The ability to tell one’s story in public without fear of reprisal is symbolic of the end of violence and the beginning of a new system. It also invites acknowledgment on the part of the offender. Therefore, victim narration contributes to the establishment of the truth, acknowledgment, forgiveness and reconciliation.

Compared to the TRC, Ethiopian’s prosecution process focused on perpetrators and, therefore, did not allow victims to tell their stories. With this, the cathartic effect of truth-telling was lost. Victims were able to relate their experiences only if they had been introduced as witnesses. The SPO tried to use the witness hearing process as a means of achieving two things. The first was to produce evidence against the accused, while the second was to enable victims to tell their stories although the story may not have had relevance to establish individual guilt. Firew noted:94

It appears that the SPO, by choosing this strategy wanted to create a forum for witnesses, most of whom were affected in some way, to vent their sorrow and testify in public against leaders who were responsible for some of the most atrocious crimes. In a sense, it is like trying to ‘kill two birds with one stone’ at the expense of a speedy trial.

The defence counsel objected to this strategy by arguing that a victim’s narration would better suit a truth commission than an adversarial courtroom.95 In one of the trials, the prosecutor had called 500 witnesses and promised to call another 500, in addition to adducing physical evidence.96 Expressing displeasure, one defence counsel noted that ‘if what SPO is trying to do is record keeping, it could be done more effectively by a truth commission; it need not be done in a court room’.97 Even when called as witnesses, because of the judicial nature of the proceedings and due process requirements, victims were procedurally restricted in their narration. For example, they were limited to the issues framed at the criminal trial, which did not allow for investigation into the causes of the conflict, the political environment that enabled the violations or institutional failures. This denied victims the personal satisfaction of telling a personal story and prevented the uncovering of the truth.

3.5 Offender participation

The voluntary participation of offenders in the truth-telling process is essential to the process of healing and reconciliation. Though discomforting and agonising to many,98 the TRC’s power to grant amnesty to perpetrators also expedited the truth-telling process. As Leah et al note:99

Truth-telling was further promoted through amnesty hearings at which applicants for amnesty were required to make full disclosure of the gross human rights violations they had committed, their motives and perspectives, and evidence of the authorisation of such violations as required in the TRC Act.

Perpetrators had the incentive of voluntarily disclosing the truth as the amnesty hearing was not a process intended to determine guilt or punishment. In Ethiopia, the process basically involved determining the guilt or innocence of individuals following strict procedures and the satisfaction of the standard of proof. Wrongdoers, therefore, had no incentive to disclose the truth. The system depended on the ability to produce evidence, which evidence was ‘contested, put into question, or interpreted in different ways to win a case’.100 The confrontational nature of criminal trials highly restricts, if not prevents, perpetrators’ voluntarily disclosing the truth about the past. As is often said, ‘in court you win a case, not the cause’. Interestingly, 33 high-level former officials wrote to the Prime Minister of the country requesting a forum whereby they ‘beg the Ethiopian public for their pardon for the mistakes they have done knowingly and unknowingly’. This forum never realised, and with it was lost the partial opportunity for disclosure, acknowledgment and reconciliation.101

3.6 Time frame

Transitional justice may be viewed as a continuous process. Nevertheless, the time frame within which the major tasks are completed determines its relevance and significance to society. Accordingly, the TRC completed its tasks within a relatively short period, with the result that its findings were relevant to both victims and society. It took the TRC three years to finalise its work and issue its interim and final reports. In contrast, as noted previously, at the outset the Ethiopian trials took more than 15 years (closer to two decades), rendering it less useful. This delay led the late Ethiopian Prime Minister, Meles Zenaw, to acknowledge that ‘the exercise became more and more irrelevant’.102

3.7 Outcome

A final point worth considering is the outcome of truth-telling processes: To what extent did the TRC and the Red Terror trials uncover the truth? This question is too complex to answer in this article. The TRC has produced several reports about its working procedures and findings. It is noted:103

The Commission found that the majority of gross human rights violations were committed by the state through its security and law-enforcement agencies ... At the same time, however, the Commission found that the liberation forces were guilty of acts of human rights violations.

As the TRC operated openly and publicly, many of these findings were already in the public domain.

Clearly, in uncovering and recording the truth, the TRC undertook a far-reaching enterprise.104 Although this story may not be complete, it uncovers a broader narration of ‘truths’ that allows society to come to terms with its past and move forward. As the Chairperson of the Commission noted:105

[The report] is not and cannot be the whole story; but it provides a perspective on the truth about a past that is more extensive and more complex than any one commission could, in two and a half years, have hoped to capture ... We hope that many South Africans and friends of South Africa will become engaged in the process of helping our nation to come to terms with its past and, in so doing, reach out to a new future.

The TRC has been subjected to various criticisms relating the negotiated nature of the transition itself that restricted its mandate to uncover the truth about human rights violations.106 Apart from these issues relating to truth, the South African transitional justice process has been criticised for not incorporating the ideas of criminal justice and social justice in its mandate and procedures.107 While the issue of social justice is too broad to be covered in this article, one may note the importance of taking appropriate measures, including those recommended by the TRC, to ensure social and economic justice and tackle the structural problems of inequality. This, of course, highlights the importance of adopting a holistic and continus approach.

There is also the matter of prosecution, the significance of which remains controversial. The pro-prosecution argument is consequentialist, based on the need to deter similar violations and counter impunity. Thus, Professor Orentlicher expresses the opinion that ‘the fulcrum of the case for criminal punishment is that it is the most effective insurance against future repression’.108 Because of these benefits associated with prosecution, we now have the controversial notion of a duty to prosecute under international law - especially under international humanitarian and human rights law. On the other hand, the anti-prosecutionists reject prosecution as an inappropriate modality because of its emphasis on retribution. Thus, Asmal argues that ‘given the complexity of justice in transitional situations, the simplifications insisted up on by penal law fundamentalists are helpful neither to South Africa, nor to transitions elsewhere’.109 It is useful to note that the TRC process did not entirely preclude prosecution. The Ethiopian experience also suggests that prosecution - wholesale prosecution - is neither possible nor desirable. Some critics point out the ‘limited value’ of the truth uncovered, which does not entirely dismiss the TRC’s work.110 Despite these criticisms, the TRC has uncovered and recorded the widest possible truth. The TRC’s extensive and successive reports, widely available to the public, demonstrate its achievements.

In Ethiopia, whether there was successful truth-telling is a subject of intense debate. For some, the process was a success. Recognising the limitation but emphasising the success, a former Supreme Court judge noted:111

Many people were convicted in both Federal and regional courts. At least as far as these people are concerned the facts were established. I guess there might be facts we have not discovered. Did we reveal the whole account, the whole picture of every individual crime? The courts were presented with detailed accounts of what happened ... Well, according to estimates, about 500 000 people were killed. I do not think we have an account of each of the 500 000. However, I think a fairly good picture of what happened has been discovered.

These points, while appreciative of the process, also reveal limitations. The judicial process is even presented as superior to truth commissions in establishing genuine or real facts.112 Nevertheless, critics dismiss the judicial process for not yielding the truth. An exemplary view is that

[t]here is no truth. Truth is indivisible. You cannot be partial to the truth and be just ... right from the beginning, they [those in power] were not interested in being truthful, they were not interested in being just, and they were interested in expedient process by which they could establish themselves in this country. To this day, there is no truth.113

This view questions the very motivation and legitimacy of the Ethiopian process because of its partiality and failure to deliver the truth. In addition, there were problems arising from the inadequacy of courts to establish the truth. Moreover, there is a lack or inadequacy of publication of the findings. A former special prosecutor noted:114

Publication is very important ... there is a publication problem; we have not made our discoveries public. These efforts and works should not all remain secret. Today, I speak about it. Maybe no one speaks tomorrow ... A lot of work was done. But it is not known much ...

Hence, the truth established and embedded in judicial documents remains unpublicised and, even worse, kept secret.115 Thus, the truth loses its significance to the victims or relatives and its potential to transform society.